09 LC 35
1317
House
Bill 567
By:
Representatives Parsons of the
42nd
and Willard of the
49th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 17 of Title 17 of the Official Code of Georgia Annotated, relating
to the "Crime Victims' Bill of Rights," so as to change certain provisions
relating to the rights of crime victims; to clarify the rights of crime victims
and the method for notifying victims in certain proceedings; to provide for
proceedings for the enforcement of such rights; to provide for related matters;
to provide an effective date; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
17 of Title 17 of the Official Code of Georgia Annotated, relating to the "Crime
Victims' Bill of Rights," is amended by revising Code Section 17-17-1, relating
to a declaration of policy, as follows:
"17-17-1.
(a)
The General Assembly hereby finds and declares it to be the policy of this state
that victims of crimes should be accorded certain basic rights just as the
accused are accorded certain basic rights.
Among these
rights are:
(1)
The right to be reasonably protected from the accused;
(2)
The right to reasonable, accurate, and timely notice of any public proceeding
involving the crime perpetuated against them or of any release or escape of the
accused;
(3)
The right not to be excluded from any such public proceeding, unless the court,
after receiving clear and convincing evidence, determines that testimony by the
victim would be materially altered if the victim heard testimony from a
witness;
(4)
The right to be heard at any public proceeding involving the release, plea,
sentencing, or parole of the accused;
(5)
The right to confer with the attorney for the state in any criminal prosecution
related to the state;
(6)
The right to restitution as provided by law;
(7)
The right to proceedings free from unreasonable delay; and
(8)
The right to be treated fairly and with respect for the victim's
dignity.
(b)
The crime victim or victim's lawful representative, and the attorney for the
state's prosecution, may assert the rights described in this chapter. The
accused shall not be authorized to obtain any form of relief under this chapter.
The rights afforded by this chapter shall be asserted in the court in which a
defendant is being prosecuted for the crime or, if no prosecution is underway,
in the court having jurisdiction over the location where the crime occurred. A
court shall timely decide any motion asserting a victim's rights. If a court
denies the relief sought, the reasons for the denial shall be clearly stated on
the record, and the movant may petition the court of appeals for a writ of
mandamus challenging such decision. The court of appeals may issue the writ and
shall consider and decide such application within 72 hours after the petition
has been filed. In no event shall the proceedings provided by this subsection
be stayed or subject to a continuance of more than five days. Where the court
of appeals denies the relief sought, the reasons for the denial shall be clearly
stated on the record."
SECTION
2.
Said
chapter is further amended by revising Code Section 17-17-5, relating to
notification to victim of accused's arrest, release from custody, and any
judicial proceedings at which such release is considered, as
follows:
"17-17-5.
(a)
All victims, wherever practicable, shall be entitled to notification as defined
by paragraph (7) of Code Section 17-17-3 of the accused's arrest, of the
accused's release from custody, and of any judicial proceeding at which the
release of the accused will be considered. No such notification shall be
required unless the victim provides a landline
or
cellular telephone number
other than
a pocket pager or electronic communication device
number,
mailing address, or e-mail address to
which such notice can be directed.
A victim
requesting notification by more than one means of notification shall be so
notified.
(b)
The investigating law enforcement agency, prosecuting attorney, or custodial
authority who is required to provide notification pursuant to this chapter shall
advise the victim of his or her right to notification and of the requirement of
the victim's providing
a landline
telephone number other than a pocket pager or electronic communication device
number
contact
information to which the notification
shall be directed. Such victim shall transmit the
telephone
number
contact
information described in this
subsection
Code
section to the appropriate investigating
law enforcement agency, prosecuting attorney, or custodial authority as provided
for in this chapter."
SECTION
3.
Said
chapter is further amended by revising Code Section 17-17-6, relating to
notification to victim of accused's pretrial release and of victims' rights and
the availability of the victims' compensation and services, as
follows:
"17-17-6.
(a)
Upon initial contact with a victim, all law enforcement and court personnel
shall make available to the victim the following information written in plain
language:
(1)
The possibility of pretrial release of the accused, the victim's rights and role
in the stages of the criminal justice process, and the means by which additional
information about these stages can be obtained;
(2)
The availability of victim compensation
and
restitution where applicable;
and
(3)
The availability of community based victim service programs.
(b)
The Criminal Justice Coordinating Council is designated as the coordinating
entity between various law enforcement agencies, the courts, and social service
delivery agencies. The Criminal Justice Coordinating Council shall develop and
disseminate written information upon which law enforcement personnel may rely in
disseminating the information required by this chapter."
SECTION
4.
Said
chapter is further amended by revising Code Section 17-17-12, relating to
notification to the victim of an accused's motion for new trial or appeal,
release on bail or recognizance, appellate proceedings, and outcome of appeal,
notifications regarding death penalty cases, and victim's rights retained at a
new trial or on appeal, as follows:
"17-17-12.
(a)
Upon the written request of the victim, the prosecuting attorney shall notify
the victim of the following:
(1)
That the accused has filed a motion for new trial, an appeal of his or her
conviction, or an extraordinary motion for new trial;
(2)
Whether the accused has been released on bail or other recognizance pending the
disposition of the motion or appeal;
(3)
The time and place of any appellate court proceedings relating to the motion or
appeal and any changes in the time or place of those proceedings;
and
(4)
The result of the motion or appeal.
It
shall be the duty of the prosecuting attorney to notify the victim of the need
to make such request in writing.
(b)
Upon the written request of the victim
as defined
in paragraph (11) of Code Section 17-17-3,
in cases in which the accused is convicted of a capital offense
or other
violent offense against the victim, including, but not limited to, assault,
battery, child molestation, rape, or other sexual
assault, and receives the death penalty
or other
sentence, it shall be the duty of the
Attorney General to:
(1)
Notify the victim of the filing and disposition of all collateral attacks on
such conviction which are being defended by the Attorney
General,
including, but not limited to, petitions for a writ of habeas corpus, and the
time and place of any such proceedings and any changes in the time or place of
those proceedings; and
(2)
Provide the victim with a report on the status of all pending appeals,
collateral attacks, and other litigation concerning such conviction which is
being defended by the Attorney General at least every six months until the
accused dies or the sentence or conviction is overturned or commuted or
otherwise reduced to a sentence other than the death penalty.
It
shall be the duty of the prosecutor at or prior to the date of conviction and
any post conviction appeal, or the Attorney General following the date of the
filing of a habeas action, to make a reasonable attempt to notify the victim of
the need to make such request in writing and to provide information regarding
how to contact the office of the Attorney General.
(c)
In the event the accused is granted a new trial or the conviction is reversed or
remanded and the case is returned to the trial court for further proceedings,
the victim shall
continue
to be entitled to request the rights and
privileges provided by this chapter."
SECTION
5.
Said
chapter is further amended by revising Code Section 17-17-13, relating to
notification to the victim of impending parole or clemency proceedings, as
follows:
"17-17-13.
The
State Board of Pardons and Paroles shall give 20 days' advance notification to a
victim whenever it considers making a final decision to grant parole or any
other manner of executive clemency action to release a defendant
for a
period exceeding 60 days; and the board
shall provide the victim with an opportunity to file a written objection
to
or other
statement or information regarding such
action. No notification need be given unless the victim has
expressed
objection to release or has expressed a
desire for such notification and has provided the State Board of Pardons and
Paroles with a current
mailing
address
and,
e-mail address, or telephone number.
At the time of
conviction of an accused, the prosecutor shall advise a victim of his or her
right to notification under this Code section and provide contact information
for the State Board of Pardons and Paroles to the
victim."
SECTION
6.
Said
chapter is further amended by revising Code Section 17-17-15, relating to the
failure to provide notice not rendering responsible person liable or comprising
a basis for error, chapter not conferring standing, existing rights not
affected, and waiver of rights by victim, as follows:
"17-17-15.
(a)
Failure to provide or to timely provide any of the information or notifications
required by this chapter shall not subject the person responsible for such
notification or that person's employer to any liability for
damages.
(b)
Failure to provide a victim with any of the rights required by law shall not
give an accused a basis for error in either an appellate action or a
post-conviction writ of habeas corpus.
In no case
shall a failure to afford a right under this chapter provide grounds for a new
trial; provided, however, that in any appeal in a criminal case, the prosecutor
may assert as error the court's denial of any crime victim's right in the
proceeding to which the appeal relates.
(c)
This chapter
does
shall
not confer upon a victim any standing to participate as a party in a criminal
proceeding or to contest the disposition of any
charge;
provided, however, that a victim may make a motion to reopen a plea or sentence
if:
(1)
The victim has asserted the right to be heard before or during the proceeding at
issue and such right was denied;
(2)
The victim petitions the court of appeals for a writ of mandamus within ten
days; and
(3)
In the case of a plea, the accused has not pled to the highest offense
charged.
(d)
The enumeration of these rights shall not be construed to deny or diminish other
notification rights granted by state law.
(e)
The victim may waive any of the information or notification or other rights
provided for by this chapter."
SECTION
7.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
8.
All
laws and parts of laws in conflict with this Act are repealed.